STATE OF NEW JERSEY VS. J.Y.D. (12-05-1124, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3221-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.Y.D.,

Defendant-Appellant.
________________________________

Argued October 2, 2017 – Decided November 9, 2017

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-05-1124.

Rebecca Gindi, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Susan Brody, Deputy Public Defender, of
counsel and on the briefs; Ms. Gindi, on the
briefs).

Melinda A. Harrigan, Assistant Prosecutor,
argued the cause for respondent (Damon G.
Tyner, Atlantic County Prosecutor, attorney;
Ms. Harrigan, of counsel and on the brief).

PER CURIAM
 Defendant, J.Y.D. (defendant), appeals from his November 14,

2014 judgment of conviction after pleading guilty to first-degree

robbery, N.J.S.A. 2C:15-1, and second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1). Defendant argues the family part judge's

decision to waive him into adult court was error because the

likelihood for rehabilitation outweighed the reasons for the

waiver. He further argues his sentence must be vacated as the

trial court did not apply the guidelines set forth in State v.

Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106

S. Ct. 1193, 89 L. Ed. 2d 308 (1986), failed to account for

defendant's age and attendant circumstances, and failed to

properly weigh the aggravating and mitigating factors. We affirm.

We discern the following facts from the record. On June 9,

2010, the victim, a twenty-four year old mother, was returning

from work and driving home to Atlantic City. While stopped at a

red light, defendant, age fifteen, and an accomplice, R.J., jumped

into her car. Defendant entered through the rear passenger door,

and R.J. entered through the rear driver's side door and pointed

a gun at her saying, "[i]f you want to live you'll do as I say."

After defendant instructed the victim to move the car to a

more discreet location, R.J. demanded money, but she did not have

any. She offered her bank card, cell phone, and eventually, her

car. R.J. declined the car.

2 A-3221-14T4
 Defendant instructed the victim to again move the car, and

asked her if she was going to call the police. Once they were in

a darker location, R.J. handed the gun to defendant, who continued

to point it at her head. R.J. wanted to "get[] something out of

this[,]" and demanded the victim strip and to get on top of him.

Defendant then exclaimed, "Fuck this. I'm getting something out

of this, too." They forced the victim to have vaginal intercourse

with R.J. and perform oral sex on defendant simultaneously. Both

defendants ejaculated into her, and she spit defendant's semen

onto her sweatshirt.

Defendant ordered the victim to drive them to a sub shop.

While she was driving, defendant repeatedly asked her if she was

going to notify the police. She responded no, and that she was

going home to shower. Defendant and R.J. exited the vehicle and

"clapped each other up," laughed, and walked down Mississippi

Avenue towards Fairmont Avenue.

The victim immediately drove to the public safety building

and entered the Detective Bureau and reported two males had raped

her. An ambulance transported her to the hospital.

Police canvassed the area where the incident occurred and

recovered video surveillance from a bar showing the two suspects

entering the victim's car. A confidential informant helped to

identify R.J. and defendant. The victim identified defendant as

3 A-3221-14T4
the male who was who pointed the gun at her head while she performed

oral sex on him and vaginal intercourse with R.J. Both were

arrested.

On June 21, 2010, a juvenile delinquency complaint charged

defendant with second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(A); second-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(B); fourth-degree aggravated

assault, N.J.S.A. 2C:12-1(B)(4); second-degree conspiracy,

N.J.S.A. 2C:5-2(A)(1); first-degree carjacking, N.J.S.A. 2C:15-

2(A)(2); first-degree kidnapping, N.J.S.A. 2C:13-1(B)(1); first-

degree robbery, N.J.S.A. 2C:15-1(A)(2); and first-degree

aggravated sexual assault, N.J.S.A. 2C:13-1(B)(1).

On July 15, 2010, the State moved to waive jurisdiction from

the family part to the adult court. On October 6, 2010, the family

part judge conducted a waiver hearing.

The court heard testimony from Detective Stacey Herrerias,

who was present at the time the victim arrived at the public safety

building and described the subsequent investigation. Following

the detective's testimony, the court made the initial finding that

defendant was above the age of fourteen at the time of the offense,

and the acts alleged by the victim "fit the allegations or the

complaints that [had] been filed." The court found the evidence

and testimony proffered supported a finding that probable cause

4 A-3221-14T4
existed as to the crimes of conspiracy, carjacking, kidnapping,

robbery, and aggravated sexual assault.

Having made the initial findings, the burden shifted to

defendant to show the probability of his rehabilitation prior to

age nineteen and that potential rehabilitation outweighed the

waiver. On November 3, 2011, defendant called Rochelle Andres,

Acting Assistant Superintendent and social worker at the

Harborfields Detention Center for the New Jersey Juvenile Justice

Commission. Andres worked with defendant for more than 500 days

at Harborfields. She noted when defendant first arrived, he was

"terrible," regularly acting out and causing disruptions to the

rest of the class. Andres further testified when kept away from

R.J., defendant's conduct generally improved, however, there were

still times he caused disruptions. Andres provided the court a

letter in support of defendant.

Defendant presented Dr. Elliott L. Atkins, Ed.D., who

testified defendant could be rehabilitated within the statutory

timeframe by the juvenile justice system. After evaluating

defendant, Dr. Atkins found him remorseful and genuine. Dr. Atkins

also described defendant's chaotic family history and his history

of attachment, behavioral, and attention deficit disorders, which

heavily attributed to defendant's psychological struggles. Dr.

5 A-3221-14T4
Atkins believed defendant possessed the rehabilitative nature to

succeed.

The State initially retained Dr. Phillip Witt, Ph.D., but

sought the services of another expert, Dr. Louis B. Schlesinger,

Ph.D., after Dr. Witt opined defendant was amenable to

rehabilitation. Dr. Schlesinger testified after administering his

own tests and reviewing defendant's history, that it was his

opinion defendant was unable to be rehabilitated within the

requisite timeframe. Dr. Schlesinger noted defendant failed to

accept the consequences of his actions. Furthermore, Dr.

Schlesinger noted that although R.J., not defendant, was the

dominant actor in the incident, defendant still participated.

On April 13, 2012, the court found, in a separate written

opinion, the State met its burden to waive jurisdiction, pursuant

to N.J.S.A. 2A:4A-26(a)(1) and (2). The court also found there

was a probability defendant could be rehabilitated in accordance

with the time requirements of N.J.S.A. 2A:4A-26, but that

ultimately his prospects for rehabilitation did not outweigh the

reason for waiver. The court considered the testimony as well as

defendant's background, noting the improvement in defendant's

behavior during the years he lived with his father. The court

further noted defendant's two years at Harborfields and increased

maturity supported a finding of potential rehabilitation.

6 A-3221-14T4
 However, the court considered five factors, outlined in State

in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 344-45 (1982),

and determined that "clearly, grave offenses were committed[,]

. . . [t]he acts perpetrated upon the victim were particularly

heinous, and are of the type the legislation and the [c]ourts have

advised engender the need for deterrence," and that defendant's

actions were deliberate. The Family Part judge granted the State's

motion, finding the State met the probable cause threshold to

waive jurisdiction and defendant's prospects for rehabilitation

did not substantially outweigh the reason for waiver.

On May 10, 2012, an Atlantic County grand jury indicted both

defendant and R.J.1 The charges against defendant included two

counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-

degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree

carjacking, N.J.S.A. 2C:15-2(a)(2)&(4); first-degree conspiracy,

N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A.

2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2; four counts

of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a);

second-degree conspiracy, N.J.S.A. 2C:5-2; second-degree

possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);

1
Though defendant and R.J. were both listed on the indictment,
both were tried separately, and R.J. is not a party to this appeal.

7 A-3221-14T4
third-degree conspiracy, N.J.S.A. 2C:5-2; and fourth-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(4).

On November 22, 2013, defendant pled guilty to first-degree

robbery and second-degree sexual assault. As part of the plea

agreement, the State recommended an aggregate sentence of eighteen

years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, which included a ten-year sentence for the first-degree

robbery charge and an eight-year consecutive sentence for the

second-degree sexual assault charge.

On November 14, 2014, defendant, then age nineteen, was

sentenced to an aggregate eighteen-year prison term, subject to

parole ineligibility under NERA. Defendant was also subject to

mandatory parole supervision and Megan's Law consequences. The

other charges were dismissed. This appeal followed.2

2
On April 29, 2016, defendant moved to supplement the appellate
record to include a videotaped statement made by the victim at the
police station on the day following the events in question. By
order of June 3, 2016, the motion was deferred to the merit panel.
We granted the motion and reviewed the videotape for the sake of
completeness.
Defendant argues the State manipulated the record by relying
on Detective Herrerias' hearsay testimony, rather than the
videotape, because the videotape account offers a more reliable
and accurate account of the incident.
Notably, defendant provides no explanation about when the
defense came into possession of the videotape and why it was not
part of the record. In particular, defendant provides no
explanation about why Detective Herrerias was not cross-examined
about any alleged inconsistencies between her testimony and the

8 A-3221-14T4
 Defendant raises the following arguments on appeal:

POINT I.

THE COURT ERRED IN WAIVING J.D. TO ADULT COURT BECAUSE
THE PROBABILITY OF HIS REHABILITATION PRIOR TO THE AGE
OF NINETEEN SUBSTANTIALLY OUTWEIGHED THE REASONS FOR THE
WAIVER.

A. Legal Framework.

B. The Family Court Failed to Apply Correct Legal
Standards Resulting in a Clear Error Judgment.

1. The Family Court Erred by Failing to Provide Any
Reasons as to How J.D.'s Waiver Would Deter Crime.

2. The Family Court Incorrectly Analyzed the
Gravity of the Crime and Deliberateness Prongs of
the Test Established in C.A.H.

3. Application of Proper Legal Principles Indicates
that Waiving J.D. to Adult Court is Unnecessary to
Specifically Deter Him.

4. Application of Proper Legal Principles Indicates
that Subjecting J.D. to the More Severe Sentences
in Adult Court is Highly Unlikely to Deter
Similarly Situated Individuals.

C. J.D.'s Trial Counsel Was Ineffective, Resulting in
Prejudice to J.D.

POINT II.

J.D.'S EIGHTEEN-YEAR SENTENCE MUST BE VACATED AND THE
MATTER REMANDED BECAUSE THE COURT FAILED TO APPLY THE
YARBOUGH GUIDELINES, FAILED TO CONSIDER J.D.'S AGE-15
AT THE TIME OF THE OFFENSE, AND FAILED TO PROPERLY ASSESS
AGGRAVATING AND MITIGATING FACTORS.

videotaped statement. More significantly, defendant does not
argue, nor do we discern, any errors on the part of either the
Family Part judge or the sentencing judge in not considering the
videotape.

9 A-3221-14T4
 A. The Court Failed To Conduct A Yarbough Analysis Before
Imposing Consecutive Sentences. Had It Properly Done
So, It Would Have Found That The Factors Set Forth in
Yarbough Counsel Against Imposition Of Consecutive
Sentences.

B. The Court Failed To Consider J.D.'s Age And Attendant
Circumstances During Sentencing.

C. The Court Failed To Properly Weigh Aggravating and
Mitigating Factors.

I.

We review juvenile waiver cases under an abuse of discretion

standard. State in re V.A., 212 N.J. 1, 25-26 (2012). We consider

"whether the correct legal standard has been applied, whether

inappropriate factors have been considered, and whether the

exercise of discretion constituted a 'clear error of judgment' in

all of the circumstances." State v. R.G.D., 108 N.J. 1, 15 (1987)

(quoting State v. Humphreys, 89 N.J. 4, 13 (1982)); State in

Interest of J.F., 446 N.J. Super. 39, 51-52 (App. Div. 2016).

Our review requires that "1) findings of fact be grounded in

competent, reasonably credible evidence, 2) correct legal

principles be applied, and 3) the judicial power to modify a trial

court's exercise of discretion will be applied only when there is

a clear error of judgment that shocks the judicial conscience."

J.F., supra, 446 N.J. Super. at 52. We defer to the family part's

expertise, but reverse if "the trial court has erroneously applied

10 A-3221-14T4
the governing principles of law[.]" In re State ex rel. A.D., 212

N.J. 200, 215 (2012); J.F., supra, 446 N.J. Super. at 52.

At the time of defendant's crime, N.J.S.A. 2A:4A-26

controlled juvenile waivers.3 See State in Interest of N.H., 226

N.J. 242, 248-49 (2016). The statute provided, in pertinent part,

that:

On a motion by the prosecutor, a court shall,
without the consent of the juvenile, waive
jurisdiction over a case . . . if it finds,
after hearing, that:

(1) The juvenile was 14 years of age or older
at the time of the charged delinquent act; and

(2) There is probable cause to believe that
the juvenile committed a delinquent act or
acts which if committed by an adult would
constitute:

(a) Criminal homicide other than death
by auto, strict liability for drug
induced deaths, pursuant to [N.J.S.
2C:35-9], robbery which would constitute
a crime of the first degree, carjacking,
aggravated sexual assault, sexual
assault, aggravated assault which would
constitute a crime of the second degree,
kidnapping, aggravated arson, or gang
criminality . . . .

[N.J.S.A. 2A:4A-26.]

If the court finds both elements are met, then it must engage

in further analysis:

3
This statute was repealed and replaced by N.J.S.A. 2A:4A-26.1,
effective on March 1, 2016.

11 A-3221-14T4
 If the juvenile can show that the probability
of his rehabilitation by the use of the
procedures, services and facilities available
to the court prior to the juvenile reaching
the age of 19 substantially outweighs the
reasons for waiver, waiver shall not be
granted. . . .

[N.J.S.A. 2A:4A-26(e).]

When a defendant demonstrates the potential for

rehabilitation by age nineteen, "the court must then determine

whether the prospects for rehabilitation overcome the need for

deterrence in the given case." C.A.H., supra, 89 N.J. at 338-39.

Thus, the court balances the defendant's rehabilitation against

deterrence of crime. The deterrence concept is twofold: whether

the punishment will dissuade the individual offender from

committing the criminal acts again and whether the punishment will

discourage others from committing similar offenses. Id. at 334-

35. Such analysis must account for the following factors: (1) the

commission of a grave offense; (2) the deliberateness of conduct;

(3) an older juvenile offender; (4) the offender's past record of

infractions; (5) and the offender's background of delinquency and

exposure to the juvenile justice system. Id. at 344-45.

Here, the court found defendant was fifteen years and seven

months old at the time of the alleged offenses and probable cause

existed that he committed the alleged offenses. These findings

are entitled our deference.

12 A-3221-14T4
 The court engaged in the next level of analysis and evaluated

the evidence and testimony presented by both parties at the

hearings, including expert testimony. The court found there was

a probability defendant could be rehabilitated by age nineteen,

that defendant's behavior had improved while he was at

Harborfields, and there was evidence of increasing maturity.

The court then balanced defendant's rehabilitation against

deterrence, finding defendant's rehabilitation did not outweigh

the reason for the waiver. See ibid. Specifically, the court

found grave offenses present as defendant was charged with

committing five of ten crimes characterized as waivable offenses

pursuant to N.J.S.A. 2A:4A-26(2)(a).

Based upon the testimony of Dr. Atkins and Dr. Schlesinger,

as well as testimony from the victim, the court found defendant

"acted with deliberateness of conduct and purpose with respect to

the offenses for which he has been charged." The court found

defendant was of at least average intelligence and free will, and

although reluctant, acted at his own behest.

The third factor, an older juvenile offender, did not apply,

since defendant was fifteen at the time of the alleged offenses.

As to the fourth factor and fifth factors, the court found

defendant's past record showed a negligible record of infractions

and some exposure to the juvenile justice system.

13 A-3221-14T4
 We reject defendant's assertion that the court evaluated the

C.A.H. factors without consideration of how the waiver promotes

individual deterrence or general deterrence, and failed to provide

a required statement of reasons.

In balance, the court found defendant's potential for

rehabilitation did not outweigh the reasons for the waiver and

deterrence. We cannot say this was an abuse of the court's

discretion.

Defendant asserts the court incorrectly analyzed the gravity

of the crime and deliberateness prongs of C.A.H., supra, 89 N.J.

at 344-45, and engaged in "double counting," placing additional

emphasis on the elements of the "heinous" crimes committed. He

asserts his "conduct was [not] heinous beyond the elements of the

crimes themselves," arguing he tried to "extricate himself from

the situation" and was less culpable than R.J.

The gravity of the crime prong is "perhaps the most obvious

and potent factor in the favor of deterrence[.]" C.A.H., supra,

89 N.J. at 345. Here, the court made a finding based on substantial

credible evidence there was probable cause to believe defendant

pointed a gun at the victim, pressured her not go to the police,

and ejaculated into her mouth while she was being raped by R.J.

Defendant acted in a manner beyond that required for a conviction

on the charged offenses, and imposed excessive violence on the

14 A-3221-14T4
victim. Cf. State v. Carey, 168 N.J. 413, 425-26 (2001); State

v. Dunbar, 108 N.J. 80, 96-97 (1987); State v. Noble, 398 N.J.

Super. 574, 599 (App. Div. 2008).

As to the second prong, defendant contends his acts were not

purposeful or deliberate conduct. We disagree. The court found

defendant acted with deliberateness, reasoning that he was of

average intelligence and free will, agreed to robbing someone,

allegedly walked away "high-fiving" his co-conspirator, and there

was sufficient evidence in the record to infer defendant knew

about the gun.

Deliberate conduct is volitional and nonimpulsive behavior.

C.A.H., supra, 89 N.J. at 335. Perhaps defendant did not set out

with deliberate action to sexually assault the victim, and may

have only acted in the moment. However, the record demonstrates

defendant knew he and R.J. planned to carjack and rob someone

using a gun. He knew or should have known that such actions would

result in additional danger. Thus, defendant acted with

deliberateness in the inception of his actions. Moreover, the two

targeted a vulnerable victim, which shows a degree of planning.

Defendant next argues the court erred in waiving him to adult

court under the premise of individual deterrence. Defendant argues

subjecting him to the more severe sentences in adult court is

highly unlikely to deter similarly situated individuals, because

15 A-3221-14T4
juveniles are less likely to consider punishment when making

decisions, and general deterrence, divorced from individual

deterrence, has insignificant penal value. Both of these arguments

are without merit.

Defendant emphasizes that juveniles lack maturity, are less

likely to consider punishment, and argues the court failed to

engage in an analysis of the penal value and deterrence. Defendant

provides no support for the first two assertion. Furthermore,

when criminal conduct is of "'pressing public' concern," courts

"should give 'priority to punishment as a deterrence to others and

as an aid to law enforcement.'" State v. Onque, 290 N.J. Super.

578, 586 (App. Div. 1996) (quoting C.A.H., supra, 89 N.J. at 336).

Rehabilitation is "more appropriately reserved for cases involving

'relatively minor antisocial conduct of juveniles[,]'" ibid.

(quoting C.A.H., supra, 89 N.J. at 337), not "for juveniles who

have committed serious offense," when "the range of discretion for

courts to balance deterrence and rehabilitation is greatly

reduced." Ibid. (quoting State v. Scott, 141 N.J. 457, 472

(1995)).

"Protection of the public is not limited to ensuring society's

safety or physical security from the offender; rather, deterrence

is a relevant factor in its objective of preventing future criminal

conduct by both the juvenile and others." R.G.D., supra, 108 N.J.

16 A-3221-14T4
at 7 (citing C.A.H., supra, 89 N.J. at 334). Here, such punishment

is aimed at the general population of individuals who commit

heinous acts similar to those of the defendant. Defendant did not

only commit these crimes, but also appreciated the criminal nature

of his actions.

II.

Defendant argues his consecutive eighteen-year sentence must

be vacated because the court did not apply the guidelines set

forth in State v. Yarbough, supra.4 Defendant argues the

4
Though there are no statutorily set rules for imposing
consecutive sentences, the Court, in Yarbough, adopted six
criteria for such situations:

(1) there can be no free crimes in a system
for which the punishment shall fit the crime;

(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;

(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, . . . including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of
violence or threats of violence;

(c) the crimes were committed at
different times or separate places,
rather than being committed so closely

17 A-3221-14T4
sentencing court did not account for defendant's age and attendant

circumstances, and did not properly weigh the aggravating and

mitigating factors. Our review of a criminal sentence is governed

by the "clear abuse of discretion" standard. State v. Roth, 95

N.J. 334, 363 (1984). We consider whether the sentencing

guidelines were violated, whether the aggravating and mitigating

factors were determined based upon credible evidence within the

record, and whether the sentence shocks the judicial conscience.

in time and place as to indicate a single
period of aberrant behavior;

(d) any of the crimes involved multiple
victims;

(e) the convictions for which the
sentences are to be imposed are numerous;

(4) there should be no double counting of
aggravating factors;

(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and

(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
multiple offenses not to exceed the sum of the
longest terms (including an extended term, if
eligible) that could be imposed for the two
most serious offenses.

[Yarbough, supra, 100 N.J. at 643-44
(footnotes omitted); see also State v. Zuber,
227 N.J. 422, 429 (2017).]

18 A-3221-14T4
Id. at 364-65. Sentences entered into in accordance with

negotiated plea agreements are presumed reasonable. State v.

Fuentes, 217 N.J. 57, 70-71 (2014).

Defendant contends, under Yarbough, proper application of the

required analysis, before imposing consecutive sentences, would

have prevented defendant's current sentence. This argument is

without merit.

Courts "may impose consecutive sentences even though a

majority of the Yarbough factors support concurrent sentences."

Carey, supra, 168 N.J. at 427-28; see also State v. Swint, 328

N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences

were not mandated even where the crimes were connected by a "unity

of specific purpose, . . . were somewhat interdependent of one

another," and were both committed in a short time frame), certif.

denied, 165 N.J. 492 (2000). Our courts recognize that "there

should be no free crimes[.]" Swint, supra, 328 N.J. Super. at

264.

Additionally, sentencing courts must provide a separate

statement of reasons for imposing consecutive sentences, or risk

a remand for resentencing. State v. Miller, 108 N.J. 112, 122

(1987). However, we may affirm a consecutive sentence "where the

facts and circumstances leave little doubt as to the propriety of

the sentence imposed." State v. Jang, 359 N.J. Super. 85, 97-98

19 A-3221-14T4
(App. Div.), certif. denied, 177 N.J. 492 (2003). Thus, a sentence

need not be modified or remanded if it is not "clearly mistaken."

Id. at 98 (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)).

Here, as in Jang, the sentencing court did not expressly

explain why it imposed consecutive sentences. However, defendant

has not shown the sentencing court was "clearly mistaken." The

attendant "facts and circumstances leave little doubt" about the

sentence imposed. Id. at 97-98.

The prosecutor provided the context of defendant's crimes and

negotiated sentences to the sentencing court. Furthermore, the

court reasoned, on the record, that taking into account all the

evidence and testimony provided, including the horrid consequences

suffered by the victim, the plea agreement was fair to all parties.

Finally, and perhaps most importantly, defendant entered into this

plea agreement, knowing full well about the consecutive sentences.

As such, the sentencing court's rationale is indirectly

ascertained, and there is no reason to remand. See Miller, supra,

205 N.J. at 129-30 ("[S]entences can be upheld where . . . [w]e

can safely 'discern' the sentencing court's reasoning.").

We reject the assertion the court did not consider defendant's

age and attendant circumstances, including his background, mental,

and emotional development as required by Miller v. Alabama, 567

U.S. 460, 476-77, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d 407, 422

20 A-3221-14T4
(2012). See Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011,

2026, 176 L. Ed. 2d 825, 842-43 (2010); see also, Roper v. Simmons,

543 U.S. 551, 569-71, 125 S. Ct. 1183, 1195-96, 161 L. Ed. 2d 1,

21-22 (2005). These cases limit the possible sentences imposed

upon juveniles, Zuber, supra, 277 N.J. at 438-39, and all dealt

with juvenile defendants who had either been sentenced to capital

punishment, or under sentencing schemes that require life

imprisonment without possibility of parole. Here, defendant was

sentenced, pursuant to a plea agreement, to a maximum imprisonment

of eighteen years – even less when considering NERA. Moreover,

the sentencing court clearly accounted for defendant's age and

background, either by notice from the prosecutor or raised in its

own reasoning.

Finally, defendant argues the sentencing court did not

properly weigh the aggravating and mitigating factors. In

reviewing such arguments, we affirm if the trial court properly

identified and balanced the factors that are supported by competent

credible evidence. State v. O'Donnell, 117 N.J. 210, 215-16

(1989). Here, the sentencing judge noted a presumption of

imprisonment for the two counts within the purview of the plea

agreement. He then found that aggravating factors one, three, and

nine, of N.J.S.A. 2C:44-1(a), applied.

21 A-3221-14T4
 Defendant contends that the court did not specify the facts

supporting aggravating factor one, which considers "the severity

of the defendant's crime, 'the single most important factor in the

sentencing process,' assessing the degree to which defendant's

conduct has threatened the safety of its direct victims and the

public." State v. Lawless, 214 N.J. 594, 609 (2013) (internal

citations omitted) (quoting State v. Hodge, 95 N.J. 369, 378-79

(1984)). The record reflects the court found the prosecutor's

summary credible, and adopted it accordingly. Furthermore, the

court again noted the pain and struggle the victim endured. The

heinous nature of defendant's crime is apparent in the record.

Regarding aggravating factor three, the risk that defendant

will commit another offense, the court determined although

defendant did not have a prior history of offenses, there was

evidence within the record to support re-offending, including

defendant's lack of remorse and minimization of his role.

The court also found aggravating factor nine, the need for

deterrence, existed. In this regard, the court determined that

the entire sentence was "ultimately about" deterrence. This entire

record, notably the juvenile waiver, supports this finding.

Finally, the court found mitigating factor seven existed, as

the adverse to defendant's lack of previous criminal activity.

The court then determined that "the aggravating factors clearly

22 A-3221-14T4
preponderate[.]" We cannot say the sentence imposed here "shocks

the judicial conscience." O'Donnell, supra, 117 N.J. at 216.

Finally, defendant claims his trial counsel was ineffective,

resulting in prejudice to him. Because defendant's ineffective

assistance claim would be more appropriately addressed in a

separate post-conviction relief appeal we do not address it here.

See State v. Preciose, 129 N.J. 451, 459-60 (1992).

Affirmed.

23 A-3221-14T4